6 September SHARMA v MINISTER FOR THE ENVIRONMENT September 6, 2023 By AMPLA Admin ARELJ, General 0 More than a year on from the overturning of Sharma v Minister for the Environment by the Full Federal Court, Justice Bromberg’s original judgment continues to occupy the minds of the Australian legal community. Although the current position in Australia is that the Minister owes no duty of care in such cases, the Full Court of the Federal Court of Australia stressed that the expert evidence regarding the threat of climate change and global warming was largely uncontested, perhaps foreshadowing the cornerstone of cases to come. Globally, climate litigation is showing no signs of slowing down. As outlined below, despite numerous defeats in various jurisdictions, climate litigants have secured a small number of hard-won victories, fuelling the pipeline. Sharma v Minister for the environment Libby Douglas, BA/LLB, MU Knowledge Consultant, King & Wood Mallesons More than a year on from the overturning of Sharma v Minister for the Environment by the Full Federal Court, Justice Bromberg’s original judgment continues to occupy the minds of the Australian legal community. Although the current position in Australia is that the Minister owes no duty of care in such cases, the Full Court of the Federal Court of Australia stressed that the expert evidence regarding the threat of climate change and global warming was largely uncontested, perhaps foreshadowing the cornerstone of cases to come. Globally, climate litigation is showing no signs of slowing down. As outlined below, despite numerous defeats in various jurisdictions, climate litigants have secured a small number of hard-won victories, fuelling the pipeline. The First Instance Decision: Sharma v Minister for the Environment [202] FCA 560, 27 May 202 In September 2020, Anjala Sharma and seven other children brought an action against the Federal Minister for Environment Sussan Ley and Vickery Coal, a wholly owned subsidiary of Whitehaven Coal. The Applicants claimed the Minister owed them and other Australian children a duty of care under the laws of negligence, and that she had breached that duty by approving the extraction of coal from a mine. In February 2016, Whitehaven Coal applied to the Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to extend a coal mining project (Extension Project) in northern New South Wales. If approved, the Extension Project would increase total coal extraction from the mine site from 135 to 168 million tonnes, which when combusted would produce about 100 million tonnes of carbon dioxide (CO2). The Minister had this decision before her at the time of these proceedings. The Applicants claimed that a novel duty of care existed on the part of the Minister towards the children, arising out of the legal relationship between the two parties. The Applicants argued that the Minister was bound by this duty of care to exercise her power under the EPBC Act with reasonable care so as not to cause them harm, and therefore must deny the Extension Application for the reasonably foreseeable harm it would cause by the extraction of coal and emission of CO2 into the Earth’s atmosphere. The Applicants cited mental or physical injury, including ill-health or death, as well as economic and property loss as the kinds of harm relevant to the duty of care being claimed. The climatic hazards that would be exacerbated by continued CO2 pollution, the Applicants argued, include frequent and more damaging bushfires, storm surges, coastal flooding, inland flooding, cyclones, and other extreme weather events. The science behind these claims was presented in detail by a number of unchallenged expert witnesses, although the Minister, in her evidence, sought to downplay the effect of an Extension Project on predicted global temperature increases. His Honour detailed the history of torts and negligence, and highlighted that the purpose of law is to evolve according to societal needs and issues. At [116] Bromberg J paraphrased Lord Macmillan in Donoghue v Stevenson [1932] AC 562: “The common law will respond to human errancy by imposing legal responsibility and, driven by the standards of the reasonable person, sensitive as they must be to the changing circumstances of human existence, the ‘conception of legal responsibility may develop in adaptation to altering social conditions and standards’.” His Honour accepted the Applicant’s claims regarding the foreseeable harm arising out of coal mining and CO2 emissions, and found that the Applicants had established that the Minister owed a duty of care. However, Bromberg J stopped short of granting the sought injunction, which would prevent the Minister from exercising her powers of approval under the EPBC Act, on the basis that there was no reasonable expectation that the Minister would approve the Extension Project (in other words, there was no reasonable expectation that she would breach the alleged duty). The application was approved in the interim between the First Instance Judgment and the hearing of the Minister’s appeal. The Appeal: Minister for the Environment v Sharma [022] FCAFC 35, 15 March 2022 The decision of the Full Federal Court to overturn Bromberg J’s judgment ran to over 200 pages. The case was overturned on three major points, being non-justiciability, causation of harm, and foreseeability of harm. Chief Justice Allsop reasoned that the duty of care being claimed by the Applicants was centred around policy matters that are, by their nature, unsuitable for judicial determination. The Courts, he argued, are neither sufficiently equipped nor informed to make decisions concerning the policy response to climate change and the question of whether, and if so how, CO2 emissions should affect the Minister’s decision to approve or deny applications under the EPBC Act. The duty of care was therefore denied by Allsop CJ on the basis of non-justiciability. Justice Beach held the view that the question regarding the duty of care could be addressed without consideration of policy issues. However, he posited that Blomberg J should not have made any declaration on the duty of care because such questions of breach, causation and damage could not yet be considered. Essentially, proceedings could only be brought after the breach of duty has occurred, not in anticipation of it. All three judges agreed that the Minister had no duty to consider potential harm to Australian children resulting from CO2 emissions when making decisions under the EPBC Act. Allsop CJ and Wheelahan J argued that the duty of care was incoherent with the EPBC Act as it would go beyond the intended scope of the legislation. However, Beach J did not find that the level of incoherence was significant enough to preclude the existence of a duty of care. Furthermore, the children were not considered a vulnerable class for the purposes of the claim, and the Court held that the relationship between the children and the Minister was not sufficiently close or direct enough to establish a duty of care. The issue of causation presented a significant hurdle to the establishment of a duty of care. The Court reasoned that the harm resulting from CO2 emissions is a global problem with countless contributors, and that the Minister could not be held responsible for a small contribution to the increased risk of harm. The Minister was denied the opportunity to challenge the scientific evidence, as it had not been challenged in the First Instance. This was seen as indicative of a political environment in which countries and organisations do not wish to be seen as denying a link between CO2 emissions and climate change. Although the Court considered that there may have been some areas of the expert evidence that could have been challenged, Bromberg J’s acceptance and interpretation of the evidence was held to be legitimate, and could not be contested on appeal. Finally, the FCAFC decided that the indeterminacy of harm in the context of rolling events potentially causing damage, where there is no meaningful limit on how many children would suffer and how many times, precluded the existence of a duty. Based on the issues of non-justiciability, causation, and foreseeability of harm, the novel duty of care was found not to exist. This has been seen by some as a major setback for climate litigation applicants globally, as these issues had either been considered favourably by judges in foreign cases, or not at all. In particular, the discussion around non-justiciability established a strong argument that the Courts are inappropriately placed to decide matters around climate change policy. Climate Litigation around the World 3.1 New Zealand: Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552, 21 Oct 2021 This case was an appeal and cross-appeal of a decision handed down by Wylie J in the New Zealand High Court in March 2020. The Plaintiff was Michael Smith, a Māori elder who brought three actions in the High Court: public nuisance, negligence, and breach of novel duty of care. The Defendants were seven New Zealand companies. In the first instance, Wylie J struck out two out of the three causes of action, but was unwilling to dismiss the novel duty of care claim. The Plaintiff appealed against the decision to dismiss the first two causes of action, and the Defendants cross-appealed the decision not to strike out the third cause. The Court of Appeal unanimously dismissed the Plaintiff’s appeal and upheld the Defendant’s cross-appeal. The Court reasoned that tort claims were not an appropriate vehicle for addressing climate change, and at [26] described climate change as “a striking example of a polycentric issue that is not amenable to judicial resolution”. 3.2 Netherlands: Urgenda Foundation v State of the Netherlands ECLI:NL:HR:2019:2007 In the ground-breaking Urgenda case of 2019, the issue at hand was whether the Dutch State was obliged to reduce, by the end of 2020, the emission of greenhouse gases originating from Dutch soil by at least 25% compared to 1990, and whether the courts could order the State to do so. The answer to both questions was yes, setting brand new precedent and sparking a wave of climate litigation throughout Europe. 3.3 UK: Friends of the Earth v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 The Plaintiffs in this case argued that the UK Government’s Net Zero Strategy was not exhaustive enough, and inadequate to achieve the necessary emissions reductions. The UK High Court held that the Government’s plan was unlawful, and allowed the Government eight months to update its climate plan. 3.4 US: Juliana, et al. v United States of America, et al. 6:15-cv-01517-TC The Juliana case was filed in 2015 by 21 young people in the District Court of Oregon. The plaintiffs alleged that the US Government knowingly violated their due process rights of life, liberty, and property, as well as its sovereign duty to protect public grounds, by allowing for the release of CO2 emissions. The case was dismissed in January 2020 by a Ninth Circuit panel, and in February 2021 the Ninth Circuit denied the appeal. The case is currently awaiting the District Court’s decision regarding the plaintiff’s application to amend their claim. In a surprising and creative turn, the plaintiffs intend to use the recent Supreme Court decision to overturn Roe v. Wade to demonstrate the common law protection of the right to life, which they argue must be extended to protecting the lives of young Americans from the harms of climate change. 3.5 Canada: La Rose v Her Majesty the Queen (2019) T-1750-19 Canada has several climate litigation cases underway, all of them led by young people. In this case, brought in 2019 and currently in the process of an appeal hearing at the Federal Court, the plaintiffs alleged that Canadian youth are already being harmed by climate change, and that the Federal Government is violating their rights to life, liberty and security of the person under section 7 of Canadian Charter of Rights and Freedoms by allowing the release of CO2 into the Earth’s atmosphere. 3.6 Colombia: Future Generations v Ministry of Environment and Others STC4360-2018 In 2018, 25 young people won a lawsuit against the several Colombian government and corporate bodies. The plaintiffs claimed that climate change threatened their fundamental rights to a healthy environment, life, health, food, and water, and that the Government violated their rights and those of future generations by not doing enough to combat deforestation of the Amazon rainforest. The Colombian Supreme Court found in favour of the plaintiffs, and recognised the Colombian Amazon as an area having its own rights. The Supreme Court also ordered the Government to formulate and carry out clear plans to significantly reduce emissions and deforestation. What’s Next for Australia and Beyond? The Federal Court case of Pabai & Kabai v Commonwealth VID 622/2021 is set for trial to begin in June 2023. The case was brought by a group of Torres Strait Islanders from the Gudamalulgal Nation seeking relief on the behalf of all Torres Strait Islanders people for the harm caused by CO2 emissions. The Applicants contend that the Commonwealth has engaged in an ongoing breach of its duty of care by allowing for the release of greenhouse gases into the Earth’s atmosphere, causing degradation of the land and marine environment, loss of the Ailan Kastom (traditional way of life), damage to their native title rights, and physical and psychological harm. Corporate responsibility has come to the forefront in a new derivative action brought by ClientEarth against 11 Shell directors in the High Court of England and Wales in February 2023. The Applicant alleges that the Shell directors have mismanaged material and foreseeable climate risks, and have breached their duties under the Companies Act 2006 (UK) to exercise reasonable care, skill and diligence, and to act in good faith in a way that promotes the success of the company for the benefit of its members. At the time of writing, the Applicant is waiting on permission from the Courts to proceed with the claim. In conclusion, it has become clear that young people in Australia and around the world are growing increasingly frustrated with institutional responses to climate change. Our most junior citizens, not yet able to vote, are bringing their concerns to the courts in search of better, faster solutions for what they perceive to be an urgent problem that the government has not earnestly addressed. The Sharma decision, as we have seen, hinged on three points. The first two, duty of care and reasonable foreseeability of harm, are becoming increasingly difficult to deny in the face of climate science, environmental devastation, and the sentiment of young people globally. The third point, and the final hurdle upon which the Sharma case stumbled, is non-justiciability. Lauren Wright, one of the youth plaintiffs in the Canadian La Rose case, told a courtside reporter, “To hear the lack of urgency, to hear ‘well just come take it to your Federal Government’ as if we haven’t tried that, as if they are not the perpetrator that we are seeing in the legal domain … we are pursuing the legal branch and the legal basis because we have tried everything else”.[i] It is evident that climate litigants are, by their nature, unwilling to acquiesce to the status quo. Based on what we have seen thus far, if systemic overhaul is required in order for effective action to be taken, it is reasonable to expect that these young litigants will not baulk in the face of such a challenge. [i] Rachel Morgan, “15 youth push Charter case against Ottawa as global environmental movement expands legal action”, The Pointer. Related Articles COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES Professor Alex Gardner, University of Western Australia Law School, and Laura Hamblin, formerly research associate at the UWA Law School, 2021 Why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Addressing this question presents an important theme for this comparative review of some core features of the regulatory frameworks for mine closure in three Australian States. It also raises important questions for future legal research. Western Australia, Queensland and Victoria have prominent but vastly different, and thus uniquely significant, mining industries. Western Australia’s mining industry has a long history of large and smaller scale mining of a diverse range of minerals by various methods that pose significant mine rehabilitation challenges.[i] Queensland’s mining industry is similarly large and diverse, dominated by export coal production, and planning future minerals development in a decarbonising world.[ii] Victoria has a smaller mining industry with a large historical legacy dominated by a coal mining industry for domestic electricity generation in the Latrobe Valley, which is closing as the State actively transitions to renewable power sources.[iii] These States also have significant differences in the regulation of their mining industries. What all three States do have in common is the significance of their mining industries to both the State economy and the communities who depend on or live near mining operations. Importantly, all three States are confronting large legal and regulatory challenges in managing mine rehabilitation and closure. The key to addressing these challenges is effective mine closure planning: the closure of a mine site has ripple effects that are not merely environmental and economic, but social and cultural too. The initial approval of a mine closure plan occurs before any mining has begun and, with the life cycle of a mine often spanning decades, regulatory bodies are approving hypothetical closure scenarios, potentially subject to vast changes. Regulatory bodies may then seek to enforce closure requirements enshrined in a plan that may wane in relevance as mining operations progress, the updating of which may depend on the miner. Yet remedying the regulatory system so that it creates adaptable but consistently effective mine closure outcomes for affected communities still begins at planning. Although that planning is an iterative process across the life of the mine, it is very important at the initial stage of approval. Recent legislative reforms in all three States are adding to the regulatory rigour and adaptability of mine closure planning, though there are very different legal requirements for community consultation. This article aims to explain and assess the regulatory reforms by undertaking a comparative analysis of mine closure planning across Western Australia, Queensland and Victoria, with a focus on the initial approval stage and how stakeholders and communities are brought into that process. The facilitation of continuous and comprehensive community engagement is critical to ensuring that mine closure planning accounts for environmental, economic, social, cultural and safety outcomes after mine closure, but it has not been possible to consider here the process of ongoing mine closure planning, especially for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment.[iv] The article begins by considering core concepts of mine closure planning and the regulatory goals that inform it. It then provides a comparative overview of each State’s mine closure planning requirements under the mineral resources, environmental and land use planning laws and draws out some of the different regulatory structures and processes for mine closure within each State. The third step in our analysis compares the ways in which those laws provide for local communities’ participation in mine closure planning, with specific attention to whether the regulatory provisions create legally enforceable rights for effective community engagement. The article concludes with a summary of the key points from the discussion of three themes in our analysis: (i) the importance of clear definitions of core concepts and key goals, (ii) mine closure planning as an essential part of a mining proposal, and (iii) the legal definition of community engagement and consultation rights. Mine closure planning and implementation is necessarily influenced by many other spheres of law including taxation law, investment law, water law, and the rights of traditional owners, to name a few. A potentially directly relevant Commonwealth law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which may require environmental impact assessment of a mining proposal and closure plan and lead to approval conditions supplementing State requirements.[v] Whilst acknowledging the importance of these adjacent spheres of the regulatory frameworks for effective mine closure planning, this article does not attempt to address their impact. In particular, the rights of Traditional Custodians are a crucial part of mine closure planning that are only briefly noted here and that would benefit from future research. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy. See L Hamblin, A Gardner, Y Haigh, Mapping the Regulatory Framework of Mine Closure, May 2022, CRC TiME, for a broader exploration of the full life cycle of mine closure regulation. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 214 FCR 301, [144], [227]-[230], referring to the range of approval conditions, which included mine closure. In setting conditions under the EPBC Act, the Commonwealth Minister must consider any relevant conditions under State or Territory law: at [80] citing Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. FORREST AND FORREST PTY LTD AND MINISTER FOR ABORIGINAL AFFAIRS [2023] WASAT 28 Western Australia’s State Administrative Tribunal (SAT) has rejected a review, by Forrest & Forrest Pty Ltd, against the refusal of consent to impact an Aboriginal site in constructing weirs across the Ashburton River. A unanimous three-member panel published its decision in April 2023. SAT’s decision and reasoning has direct significance and use for anyone involved in processes for a s 18 consent under the Aboriginal Heritage Act 1972 and broader relevance for the law around protection of Aboriginal heritage in Western Australia. With the WA Government announcing the reversal of recent statutory changes and a return to the 1972 legislation, SAT’s decision has increased relevance. QUEENSLAND’S MINE REHABILITATION REQUIREMENTS FOR VOIDS: ENSHAM CASE STUDY The State of Queensland reformed its mine rehabilitation legislation, namely the Environmental Protection Act 1994 (Qld) (EP Act), in 2018 through the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld) (MERFP Act). A case study of the Ensham open-cut coal mine[i] in central Queensland highlights three issues for the efficacy of this regulatory framework. The first issue concerns an available exclusion of rehabilitation requirements for existing mining voids (the area of excavation created by open cut mining) in flood plains. Under the EP Act, as amended by the MERFP Act, a holder of an environmental authority (EA) may, in its Progressive Rehabilitation and Closure Plan (PRCP) and PRCP Schedule, identify land as a Non-use Management Area (NUMA).[ii] This is land that would not be rehabilitated “to a stable condition” and not have a post-mining land use. This rehabilitation exception as a NUMA is not applicable to mining voids wholly or partly in flood plains – these must be rehabilitated to a “stable condition”,[iii] as defined in the EP Act. This is the “section 126D(3) rehabilitation obligation”.[iv] However, the transitional provisions of the mining rehabilitation reforms differentiate the rehabilitation obligations of pre-existing mines (those existing at the time of the reforms, such as the Ensham Mine) and new site-specific mines.[v] Pre-existing mines with a “land outcome document” that presents an outcome similar to a NUMA can establish criteria for rehabilitation or management of a void in a flood plain that supersede this section 126D(3) rehabilitation obligation.[vi] The MERFP Bill Explanatory Notes for the transitional provisions reveal that this exemption from section 126D(3) “does not retrospectively breach existing rights and provides certainty to industry on the transitional process”.[vii] However, this grandfathering is arguably disconnected from environmental risks of such residual voids, creating two classes of mines based on the timing of a mine’s existence (pre-existing versus new). This Ensham case study provides an example of a pre-existing mine’s use of a “land outcome document” to exempt rehabilitation of residual voids in a flood plain but without clarity around the non-use management status of the area of the residual voids. The second issue discussed in this case study is progressive rehabilitation. The design of a financial assurance system to increase progressive rehabilitation was “a clear objective of the EPA’s work in 2004”, yet the EP Act fell short by failing to clearly outline criteria for certification of final rehabilitation for industry, and a scheme of refunding financial assurances at the termination of mining activity.[viii] These issues remained unaddressed until the 2015 State election when the then Labor Opposition ran on the campaign “[to] investigate the expansion of upfront rehabilitation bonds for resource companies to fully fund long-term rehabilitation activities”.[ix] Thereafter, the Queensland Treasury Corporation published a number of discussion papers advising of the shortcomings of the current financial assurance framework and that, in 2017, there were “220,000 hectares of disturbance, with an estimated rehabilitation cost of $8.7 billion”.[x] Queensland’s 2018 mining regulation amendments concerning progressive rehabilitation were intended to ensure “rigorous” review of NUMA approvals in PRCPs, “through an objective public interest evaluation” for future or newly established mines.[xi] However, the reforms may not effectively address instances in which progressive rehabilitation has been lacking in large, open-cut, mature mines in operation at the time of these legislative changes. As of 2021, approximately 33% of the Ensham Mine’s 4,944.7 ha of scheduled rehabilitation areas had been progressively rehabilitated.[xii] According to Ensham’s PRCP, this level of progressive rehabilitation exceeds that of other open-cut mines in Queensland.[xiii] For established mines, such as Ensham, that are approaching closure and have large voids that have not been substantially progressively rehabilitated across their mine life, the most economical rehabilitation option may be to rehabilitate residual voids to accord with legislated requirements. Under Queensland’s legislation, “rehabilitation” does not necessarily mean these voids will be re-filled. This may be contrary to community understanding of what rehabilitation is. Thirdly, this case study highlights areas in the regulatory framework in which information transparency could be improved – particularly public access to information – which raises issues of accountability, quality of community engagement and, ultimately, social licence on the part of mining companies and government. Information transparency is also relevant to community engagement and expectations for rehabilitation, such as the meaning of “rehabilitation” of residual voids (i.e., refilling to establish a pre-mining state versus the legislated “stable condition” standard). This article is structured as follows. Part 2 presents the legal and operational context of the Ensham Mine. It also describes the operational history of flooding and its relevance to rehabilitation and management of post-mining residual risks, which leads to a discussion of the rehabilitation legal reforms. Part 3 discusses the reform of Queensland’s rehabilitation legislation framework as it concerns residual voids, including the transitional provisions of the EP Act. Part 3 also explores Ensham’s Residual Void Project (RVP) for the development of the rehabilitation criteria for residual voids and considers the community engagement process. Part 4 comments on the transitional regulatory design issues in Queensland’s framework, issues concerning progressive rehabilitation of pre-existing open-cut mines such as Ensham, as well as transparency of information and community consultation. Part 5 concludes and suggests future research. Recent environmental cases in Australia Two recent cases involving environmental actions provide some guidance on how the law and Ministerial decision making can apply. Recently two judicial review proceedings were dismissed by the Federal Court. The case was brought by Environmental Justice Australia and has been called the Living Wonders case. The case sought to challenge the Federal Environment Minister’s failure to adequately consider climate change risk when assessing two coal mine expansions under s78 of the Environmental Protection and Biodiversity Conservation Act 1999. SANTOS V TIPAKALIPPA: JUDICIAL GUIDANCE ON THE REQUIREMENTS FOR OFFSHORE PETROLEUM EP CONSULTATION In the Santos v Tipakalippa decision, the Full Federal Court has given guidance to offshore petroleum titleholders in respect of the consultation obligations that they need to satisfy in order to obtain NOPSEMA’s acceptance of environment plans that they submit for the purposes of conducting their respective petroleum activities. The Full Federal Court’s decision may, however, have wider impacts, including on the consultation that may be required to be undertaken by a project proponent under the Commonwealth Offshore Electricity Infrastructure legislation in order to develop an offshore renewable energy project. ARELJ Case Note - Clark V Minister For The Environment [2019] FCA 2027 Showing 0 Comment Comments are closed.